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Abstract

The Passamaquoddy Tribe and the Penobscot Nation brought their lands claims against the State of Maine in an effort to reclaim taken lands, to ensure that they could self-determine their futures and to hold on to their cultures and languages. What they faced were a state and federal governments opposed to such a goal. With favorable court decisions in hand, the Tribes began the long process of negotiating for the financial restitution of those claims. They learned, however, that restitution—the recovery of a small portion of their traditional territories—would only be possible if an agreement was made with the State on jurisdiction. Through that jurisdictional agreement, the State of Maine sought to ensure that the Tribes remained under state law and that the principle of inherent tribal sovereignty be made meaningless to the understanding of the agreement. Congress knew of these goals and, arguably, in breach of its trust responsibility towards native nations, did very little to protect the tribes’ sovereignty when it considered and approved the agreement in 1980. Instead, Congress added features to the jurisdictional arrangement severely limiting the applicability, in Maine, of current and future federal laws benefiting tribes and native peoples. And, it did so without the consent of the tribes located within Maine. In addition to recognizing how economic and political realities influenced why an agreement on jurisdiction was negotiated as part of a settlement for the illegal taking of indigenous lands, this Article adds to the growing list of reasons why the jurisdictional arrangement between each of the tribes located within Maine and the State of Maine must be amended.

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